Ethelbert Nnanna Nze V. Dr. Gideon Nwaeze & Ors (1999)
LawGlobal-Hub Lead Judgment Report
AKAAHS, J.C.A.
The race for the Chairmanship of Oguta Local Government Council of Imo State has been a ding-dong battle between the present appellant and the 1st Respondent since 5/12/98 when elections were conducted nationwide by the Independent National Electoral Commission (INEC) under the Local Government (Basic Constitutional and Transitional Provisions) Decree No.36 of 1998 for Chairman of Local Governments and Councillors representing various Wards. Besides the Appellant and the 1st Respondent who were sponsored by the PDP and APP respectively, the other candidates who contested the election were Francis Unyimadu of the UPP, Engr. Azuogu of MDJ and R.S. Okeke of A.D. At the end of the election, the 1st Respondent was credited with 11,824 votes to the Appellant’s 11,044 votes and INEC, the 2nd Respondent declared the 1st Respondent, Dr. Gideon Nwaeze of the APP as the winner on 6/12/98 and returned him as Chairman-Elect of Oguta Local Government.
The appellant was dissatisfied with this result and he presented a Petition before the Local Government Election Tribunal of Imo Stale No. LGEP/IM/1/98.
Francis Unyimadu, the candidate of UPP also presented his Petition numbered LGEP/IM/47/98. The two petitions were consolidated and on 8/2/99 the Tribunal delivered its judgment in which INEC was ordered to conduct a fresh election in Oru Ward between the original contestants to determine the winner of the election.
Although the 1st Respondent appealed against the judgment in Appeal No. CA/PH/EP/50/99 the Notice of Appeal was held to be incompetent and the appeal was accordingly struck out. The bye-election was subsequently held on 20/3/99 and although the appellant had a simple majority of votes cast but he lacked the spread while the 1st Respondent who had the 2/4 votes cast in more than 2/3 of the Wards of the Local Government (i.e. that he had the spread) but lacked a simple majority.
It was this state of affairs that made the 2nd Respondent to organise a second election between the appellant and the 1st Respondent which took place on 10/4/99. The 1st Respondent was credited with 38,229 votes while the appellant had 12,183 votes. The 1st Respondent was declared the winner of the election, thus prompting the second petition No. LEGP/IM/CH/1/99 from whence this appeal has been brought against the ruling of the Tribunal striking out the petition based on the preliminary objection raised by learned counsel to the 1st Respondent on the
competency of the Petition. This second Petition which shall hereinafter be referred to simply as “the Petition” was filed on 23rd April, 1999 and the Reply of 1st Respondent wherein the Preliminary objection was raised, was dated and filed on 3rd May, 1999 and the Tribunal gave its ruling on 7th May, 1999 while the Notice of Appeal was filed on 10th May, 1999. The grounds on which the preliminary objection was based are:-
“(a) The Petition breached paragraph 48(1) of Schedule 5 of Decree No.36, 1998 in that Respondents against whom allegation were made were not sued in person as Respondents.
(b) That the Petition breached paragraph 5(4) of Schedule 5 of the Decree is (sic) that the name of the occupier was not stated in the Petition.
(c) That relief paragraph 13(a) is inconsistent with paragraph 13(c) of the petition ex nihilo nilil fit.
(d) That relief in paragraph 13 is not supported by averments in the petition as the Petitioner is not relying on an inconclusive election.
(e) That the Petitioner is not qualified to contest the said election having not complied with Section 11 (1)(f) of the Decree in that he did not resign from public service before the election.
(f) That the Petition did not state the result of the election as declared by 2nd Respondent.
(g) That the 7th to 11th Respondents are not juristic persons known to the Decree.
(h) That paragraph 6 of the Petition is not a ground prescribed paragraph 5(1) (d) of the 5th Schedule to the Decree.”
The appellant field 4 grounds along with the Notice of appeal and the said grounds together with the particulars read as follows:-
“(a) The Tribunal erred in law when it held that proper parties were not joined in the Petition.
PARTICULARS
(i) The necessary and proper parties were joined in the Petition.
(ii) There was no complaint against any presiding officer in the Petition.
The Tribunal erred in law when it held that the Petition failed to state the name of the occupier of the address of service.
PARTICULARS
(b) The Petitioner clearly gave his address for service and the occupier there at when he stated as follows:
“The name of my Advocate is Declan Obioma Madu, Esq., of 46 Wetheral Road Owerri, which is also my address for service within 5 kilometres”
The Tribunal erred in law when it held that paragraph 6 of the Petitioned was a ground of the Petition and was not clear.
PARTICULARS
Paragraph 6 of the Petition is merely fact stated in support of the ground that the election question was not conducted in accordance with the Law.
The Tribunal erred in law when it held that failure to describe the electoral forms appropriately in the petition was fatal to the petition.
PARTICULARS
(i) Pleadings are not evidence and at this stage the strength or weakness of the petition is not a ground of determining its competence or otherwise.
(ii) A party is not required in any event to plead a document specifically, all he needs to plead are facts pointing thereto”
Learned Counsel representing all the parties filed Briefs of argument. In his Brief of Argument, the Appellant distilled only one issue for determination from the four grounds of appeal filed, namely:-
“Whether the Tribunal was not wrong when it held that the Petition was incompetent on the reasons it gave?”
On his part the 1st Respondent formulated four issues for determination as follows:-
“(i) Was the Election Petition right to have struck out the petition on the grounds that the proper parties were not joined?
(ii) Was the Election Petition Tribunal right to hold that failure to name the occupier of the address was fatal to the petition?
(iii) Was the Election Petition Tribunal right to hold that averments in paragraph 6 was a ground for an election petition?
(iv) Was the Election Petition Tribunal right to hold that failure to described electoral forms appropriately in the petition was fatal?”
The issues formulated on behalf of 2nd – 12th Respondents are the same with the 1st Respondent’s issues and there is no need to reproduce them. I think the issue formulated in the appellant’s brief encompasses all the questions raised for determination in the Briefs filed by the Respondents.
I shall therefore adopt the Appellant’s issue in dealing with this appeal i.e. whether the Petition was incompetent on any or all the points raised in the Preliminary objection.
The learned Appellant Counsel’s argument on the issue of joinder is that the Tribunal was clearly in error when it held that Presiding Officers were by implication the subject of the complaint in paragraph 8 of the Petition. He contended that the averment concerned the Returning Officers and it unequivocally absolved the Presiding Officers in charge of Polling Stations of any misconduct. He therefore submitted that the Respondents against whom allegations were made were joined in the petition and they were the 5th to the 11th Respondents. He urged this court to interfere and over rule the perverse conclusion reached by the Tribunal in holding that the petition was defeated by alleged non joinder of proper and necessary parties.
Learned Counsel for the 1st Respondent urged this Court to strike out the appellant’s brief because the issue for determination was not distilled from the 4 grounds of appeal and the arguments of the appellant at page 3 do not arise for even the one issue for determination or related to any issue for determination. On his part learned Counsel for 2nd – 12th Respondents referred to Section 83(2) of the Local Government (Basic Constitution and Transitional Provisions) Decree No.36 of 1998 and paragraph 48(1) of Schedule 5 to Decree 36 of the 1998 and submitted that failure to join the Presiding Officers who conducted the elections at the Polling Units is a breach of the statutory requirement which is fatal to the petition and makes it liable to be struck out. Relying on the authorities of Maikori v. Lere (1992) 3 NWLR (Pt. 231) 525 and PDP v. APP (1999) 3 NWLR (Pt. 59-1) 238, learned Counsel urged this Court to hold that the Tribunal was right in holding that there was a non joinder of the necessary parties which was fatal to the petition.
I disagree with the contention by learned Counsel for the 1st Respondent that the issue distilled by the appellant does not arise from the four grounds of appeal filed which I reproduced earlier. The argument proffered by appellant’s Counsel to my mind relate to the issue for determination. As I have already stated, the Preliminary objection is centred on the competence of the Petition which learned counsel for the appellant correctly brought out in the Brief. As it is often stated in common parlance, the appellant’s counsel “hit the nail on the head “by framing only one issue for determination out of the 4 grounds of appeal filed dealing with the competency of the Petition upon which the preliminary objection was upheld by the Tribunal to strike out the petition on the grounds amongst others that there was a non-joinder of the necessary parties and the name of the occupier was not stated in the petition.
In “MANUAL OF BRIEF WRITING IN THE COURT OF APPEAL AND SUPREME COURT OF NIGERIA” Hon. Justice Nnaemeka-Agu, J.S.C. writing in Chapter 3 of the Book on ‘The Essentials, types and competent parts of Briefs’ under the subheading ‘Issue for Determination stated thus at pages 16 – 17:-
The purpose is to identify early in the brief the issue or issues for determination in the appeal … It must not be an abstract statement of legal questions, but must be concretely related to the problems raised by the appeal in hand. The most important point to note in relation to issues for determination is that its number need not correspond with that of the grounds of appeal. (Italics mine for emphasis). This view has been emphasised both in this Court and the Supreme Court in a plethora of authorities. See Labiyi v. Anretiola (1987) 4 NWLR (Pt.63) 34. Ogbuanyinya v. Okuda (No.2) (1990) 4 NWLR (Pt.146) 551 ; Steyer Nigeria Ltd. v. BN Gadzama & anal (1995) 7 NWLR (Pt.407) 305; Okafor v. Asoh (1999) 3 NWLR(Pt.593) 35. Highgrade Maritime Services Limited v. First Bank of Nigeria Limited (1991) 1 NWLR (Pt. 167) 290; Nwobosi v. African Continental Bank Ltd ( 1995) 6 NWLR (Pt.404) 658; and Shell Petroleum Development Company of Nigeria Limited v. Federal Board of  Inland Revenue (1996) 8 NWLR (Pt. 466) 256.
In Okafor v. Asoh supra Onalaja, J.C.A. adopted the statement of Orah J.C.A. in Steyer (Nig.) Ltd v. Gadzama supra on issues for determination and the grounds of appeal where he said at page 51:
“It is neither the litany of grounds of appeal nor the myriad of issues for determination in the appeal, that effectually determines the appeal … Where there is a jumble on the grounds of appeal and a proliferation of both the grounds of appeal and the issues for determination as in the instant case the Court of Appeal is free to adopt the issues formulated for determination or to reformulate such issues as are consistent with the grounds of appeal.”
Uwais C.J.N. reiterated the desirability of a well written brief of argument which should be brief and concise containing concise statement of the facts of the case which are material to the consideration of the questions presented for determination by the court containing direct, concise and succinct statement of the argument in the appeal. This was lacking in the briefs filed by the parties in Shell Petroleum Development Company (Nigeria) Limited v. Federal Board of Inland Revenue’s case supra where the learned Chief Justice of Nigeria observed at page 274 thus:-
“But what are we confronted with in this appeal? The appellant’s brief consists of 70 pages while the respondent’s brief is made up of 435 pages (including the preliminaries) surely these are, with respect, far from the ideal. Rather than assist the court to easily follow the argument in support of the question for determination, they helped in making the arguments complex.”
To drive home the point made by Nnaemeka-Agu J.S.C. (as he then was) in the passage of his Book which I earlier underlined for emphasis. Wali, J.S.C. adopted the one issue formulated by the respondent in preference to the 8 issues which the appellant Formulated for determination in the High Grade Maritime Services Limited v. First Bank of Nigeria Ltd case supra where in his lead judgment he stated thus at page 300:-
“I prefer to adopt the approach of the respondent as regards the issue for determination because not only does it embrace the relevant issues raised by the appellant in his brief, but it is also the main issue that has arisen for determination in this appeal.”
In the present appeal, it is my firm belief that the one issue which the appellant has raised for determination is the main issue and those formulated by 1st Respondent’s counsel are only peripheral or elaborating on the main issue. I hold that the argument proffered by appellant’s counsel supports the issue for determination; hence the call by learned counsel for 1st Respondent to strike out the arguments in support of the issue cannot he countenanced.
Coming back to the argument on the issue of non-joinder of the proper parties, learned counsel for the 1st Respondent submitted that where a party claims a relief which when made will be binding on a person or ought to be binding on a person not a party to that action, then that action becomes incompetent as the necessary parties have not been joined and relied on Anya v. Iyayi (1988) 3 NWLR (Pt. 82) 359. Drawing attention to item No. (b) at page 8 of the petition. Learned Counsel argued that it is either that the Ward Returning Officer or the Presiding Officers altered the scores and that this is an allegation rightly or wrongly against the Presiding Officers who have not been joined and so this has rendered the Petition incompetent. Learned counsel further submitted that the finding of the Tribunal is not perverse and therefore urged this Court not to disturb that finding. He also said that the allegation in paragraph 8 of the Petition can notes that there must be two sets of results for each of the booths in the affected 7 (seven) Wards and contended that there is no way the Tribunal would have established the veracity of this allegation without the affected Presiding Officers being made parties in the Petition.
In order not to be carried away by the argument of learned counsel, it is necessary to refer to the ruling of the Tribunal on the preliminary objection. After reproducing the arguments of counsel, paragraph 48(1) of Schedule 5 to Decree 36 of 1988; Section 83(2) of Decree No. 36 of 1999 and making reference to paragraphs 8.10, and 11 of the Petition; the Tribunal held the view at page 85 of the records that:-
“In all these paragraphs, though the Presiding Officers are not mentioned, they conduct the election at the base and take the results to the Ward Collation centres. Any allegation of misconduct viz dereliction of duty by these officers makes them ecessary statutory parries” (Italics mine for emphasis)
The question that readily comes to mind is: Does the Presiding Officer automatically become a necessary party where falsification of results is alleged in a Petition? The answer will depend on whether the allegation affected the conduct of the Presiding Officer at the election. Paragraph 48(1) of Schedule 5 to the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 provides as follows:-
“Where an election petition complains of the conduct of an Electoral Officer, a Presiding Officer, Returning Officer or any other official of the Commission, he shall for all purposes be deemed to be a Respondent and joined in the election petition as a necessary party, but an Electoral Officer, a Presiding Officer or Returning Officer shall not be at liberty to decline from opposing the petition except with the written consent of the Attorney-General of the State concerned or Attorney-General of the Federation as the case may be”.
Section 83(2) of the Decree also provides:-
“The person whose election is complained of is in this Decree referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, Returning Officer or any other person who look part in the conduct of an election, the Electoral Officer, Presiding Officer, a Returning Officer or that other person shall for the purposes of this Decree be deemed to be a respondent and shall be joined in the election as a necessary party.”
Before the ratio of this Court in Mrs Gertrude Oduka v. Ethelbert Okwaranyia & 2 ors (1999) 4 NWLR (Pt.597) 35, inferring that those responsible for alleged malpractices would include the officials who conducted the elections in the Wards in question, can be applied to this case, it will be necessary to examine the paragraphs of the Petition where the allegations were made to determine whether those accused of the malpractices were specifically mentioned. If they were not so mentioned, then the necessary inference to be drawn would be decided by the type of assignment each officer is statutorily charged to perform under the Decree. In paragraphs 8, 10 and 11 of the Petition, it was averred as follows:-
“8. The Petitioner avers that at Awa Ward, Egwe/Egbuoma Ward, Izombe Ward, Mgbalia/Uba Ward, Oguta Wards A and B and Ossemotor Enuigbo Ward the Ward Returning Officers did not collate the result of the election at the Ward Collation centres but completed the Form EC8B (1) with figures other than those scored at the point (sic) Station recorded in the Forms EC8A(1) from the Polling Stations in these Wards.
The Petitioner further avers that when the purported votes scored at the said election is added to the number of voters who did not vote at the election it exceeds the total registration strength of votes in Oguta L.G.A. of 65,560 by more than 113 votes. Notice is hereby given to the 2nd Respondent to produce the voters register of all the eleven wards in Oguta L.G.A. used for the conduct of the said election. The Petitioner avers that he was not allowed to have an agent at the either of the aforementioned 2 Collation centres of the final result and that a well known APP Stalwart one Barrister Eze A. Nwauwa signed the Form EC 8C (1) purporting to be PDP agent to give the false result a mark of authenticity.”
The Petitioner in the paragraphs of the Petition reproduced above centered his allegations on the collation of results of the election in the Wards mentioned in paragraph 8. Statutorily, under paragraphs 30 and 31 of Schedule 4 to the Decree the Presiding Officer is charged with the following responsibilities when election has been held namely:-
“30(1) The Presiding Officer shall, after counting the votes at the Polling Station or Unit, enter the votes scored by each candidate in Form EC8A or Form EC8A(1), as the case may be, set out in Schedule 6 to this Decree.
(2) Form EC8A and Form EC8A(1) shall be signed and stamped by the Presiding Officer and countersigned by the candidates or their Party Agents where available at the Polling Station or Unit.
(3) A Party Agent shall be required to sign Form EC8A and Form EC8A(1) especially where he has requested for a recount but failure by a Party Agent to sign Form1 EC8A and Form EC8A(1) shall not invalidate the result of the poll.
(4) The Presiding Officer shall give to the Party Agents and the Police Officer present a copy each of completed Form EC8A and Form EC8A(1) after it has been signed by both the Presiding Officer and the Party Agents.
- After recording of the result of the election, the Presiding Officer shall take the election result and materials to the Ward Collation Centre under security escort if available.” A proper reading of paragraph 8 of the Petition would reveal what took place at the Collation Centres and not at the Ward levels where the scores of each candidate were being recorded. And so it cannot be said it was the conduct of the Presiding Officers that was being impugned in the petition. With respect, I do not agree with the Tribunal’s argument that since only presiding officers produce EC8A and EC8A(1) therefore their non-joinder as necessary parties rendered the Petition incompetent. I must however admit that I have not been privileged to see the unreported decision of this Court, Enugu Division in the case of Chief Ken Nnamani v. Chief Uche Nnaji & ors in Appeal No. CA/E/50/99 [now reported in (1999) 7 NWLR (Pt. 610)313] which was cited by the Tribunal in its ruling. I will however wish to distinguish the case of Oduka v. Okwaranya supra on the facts. Whereas in the present appeal the allegations in paragraph 8 of the Petition were directed against the conduct of the Returning Officers, the allegations contained in the Petition in Oduka v. Okwaranya’s case supra did not mention any official specifically by name and this was what led this Court to infer that those responsible for the alleged malpractices would include the officials who conducted the election in the Wards in question. The Tribunal was therefore wrong to have struck out the Petition for being incompetent for the non-joinder of the Presiding Officers.
Another reason for striking out the Petition is that the Petitioner did not comply with paragraph 5(4) of Schedule 5 of the Decree in that he did not clearly state the occupier’s name against the address he relied upon for service. I find the reasoning by the Hon. Tribunal rather tenuous. The case of Kaliel v. Aliera (1999) 4 NWLR (Pt.597) at 139 which the Tribunal relied on to interpret paragraph 5(4) of Schedule 5 to the Decree did not reach the extent envisaged by the Tribunal. In the lead judgment of Muhammad J.C.A. at page 149 after drawing attention to the fact that the petitioners gave an address for service without giving the name of the occupier of the address observed as follows:-
“On careful consideration of paragraph 5(4) of Schedule 6 to Decree No. 30 of 1999, it would be seen that it is mandatory to state at the foot of the petition the address of the petitioner. Apart from that the petitioner must state the name of its occupier at which address documents intended for the petitioner may be left. In our present case the Appellants have stated the address for service on the appellants but failed to State the name of the occupier of the address.”
After considering the case of Ngelizana v. Hindi (1965) NNLR 12 which was based on Section 100(4) of the Electoral Act, 1962 which is in pari material with paragraph 5(4) of Schedule 5 to the Decree and where it was held that an election petition which did not include the name of the occupier shall be deemed not to have been filed, it applied the decision in that case to hold that:-
“Where a petition is deemed not to have been filed, the only option opened to the tribunal is to strike out the petition.”
Did the Petitioner in the present case not comply with paragraph 5(4) of Schedule 5 of the Decree in stating the name of the occupier and the address for service of the Petition? After signing the column on the name “Ethelbert Nnanna Nze (Petitioner)”, the left hand corner of petition carried the following endorsement;-
“The name of my Advocate is Declan Obioma Madu, Esq., of 46 Wetheral road, Owerri, which is also my address for service within 5 kilometres.”
If this is compared with what was carried at the fool of the petition in Kaliel v. Aliero supra i.e.
“Address of the Petitioners within judicial division
c/o Amana Law Chambers,
No.33 Murtala Mohammed Road,
Birnin Kebbi”,
it will be clear beyond any doubt that the error committed in Kaliel v. Aliero supra which made the Tribunal to strike out the Petition as being incompetent which view was confirmed by this Court on appeal after an exhaustive consideration of paragraph 5(4) of Schedule 5 to the Decree was not repeated in this Petition. The only omission, perhaps, if it is an omission of any consequence, is that instead of using the magic word “Occupier”, the Petitioner chose the word “Advocate”. I agree entirely with the submission made by learned counsel for the Appellant that the essence of the Provisions in paragraph 5(4) of Schedule 5 to Decree No.36 of 1998 is to show clearly an identified or identifiable person at the address for service with whom documents meant for the Petitioner can be entrusted. I have no doubt whatsoever in my mind that the Tribunal fell into error when it struck out the petition on account of the fact that the occupier’s name was not stated against the address relied upon by the Petitioner.
In conclusion, I hold that the appeal has merit and it is hereby allowed. The Tribunal ought not to have struck out the Petition for being incompetent. The order which I should and I hereby make is that the Tribunal ought to hear the Petition on its merit. See S. 316(1) of 1999 Constitution. How I wish the Tribunal had employed the industry it expended on the preliminary objection in hearing the petition on its merit. I award costs in favour of the Appellant against the 1st Respondent assessed at N3,000.00.
Other Citations: (1999)LCN/0646(CA)